THE OKLAHOMA BAR JOURNAL 18 | FEBRUARY 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. the plenary authority to review de novo both the findings (legal and factual) and the sentence.75 The first opportunity at an appeal is through a request for clemency from the one who authorized the court-martial in the first place, the convening authority at that specific military installation. The convening authority can reduce the punishment or throw out the conviction in toto.76 The service member has one appeal as a matter of right to each of the respective service’s Court of Criminal Appeals. After that, the appeal may be taken to the U.S. Court of Appeals for the Armed Forces (CAAF), which is composed of civilian judges.77 As the court of last resort, the service member may petition the U.S. Supreme Court, on application for writ of certiorari, to hear the case.78 CONCLUSION “It is the function of the courts to make sure ... that the men and women constituting our Armed Forces are treated as honored members of a society whose rights do not turn on the charity of their military commander ... A member of the Armed Forces is entitled to equal justice under law not as conceived by the generosity of a commander but as written in the Constitution.” – Justice William O. Douglas, 1968 Stepping into a military courtroom is an opportunity that civilian counsel should not shy away from. Oklahoma’s military tradition, whether on the battlefield or in a military courtroom, is a proud one. A civilian attorney retained to assist a member of the armed forces at a court-martial is an opportunity to represent our true national treasure, our men and women in uniform serving our country. ABOUT THE AUTHOR Robert Don Gifford II is an Oklahoma City attorney who began his legal career as an active-duty Army judge advocate (JAG Corps) and remained in the Army Reserve until he retired as a colonel in 2019 with 23 years of active and Reserve service. He is a graduate of the OU College of Law and the U.S. Army War College at Carlisle Barracks, Pennsylvania. ENDNOTES 1. While allegedly attributed to Julius Henry “Groucho” Marx, the more likely source of the statement is Georges Clemenceau, a late 19th to early 20th century French politician. See Thomas G. Becker, “Military Justice Is to Justice What Military Music Is to Music:” Anatomy of an Apocryphy or How to Get Kicked Out of a Cocktail Party (Assuming You’re Invited in the First Place), 41 The Reporter 21 (2014). cf. L.H. Larue, “What is the Text in Constitutional Law: Does it Include Thoreau,” 20 Ga. L. Rev. 1137, 1142, n.2 (1986). 2. F. Lee Bailey, For the Defense, p. 38, Atheneum (1976) (“The fact is, if I were innocent, I would far prefer to stand trial before a military tribunal governed by the Uniform Code of Military Justice than by any court, state or federal.”). 3. Sherman, Military Laws (1880), reprinted in Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. Of the House Comm. On Armed Services, 81st Cong., 1st Sess. 1276 at 780 (1949). 4. Lawrence J. Morris, Military Justice: A Guide to the Issues at 2 (2010). 5. In Solorio v. United States, 483 U.S. 435 (1987), the Supreme Court held that jurisdiction of a court-martial depends solely on the accused’s status as a member of the armed forces. 6. See Preamble, Manual for Courts-Martial, United States, (2023 ed.); see also, U.S. Dep’t of Army, Army Reg. 600–20, Army Command Policy ¶4-12 (July 24, 2020) (“It is the commander’s responsibility to maintain good order and discipline in the unit. Every commander has the inherent authority to take appropriate actions to accomplish this goal.”); U.S. Air Force Instruction No. 1-1, Air Force Culture, (Aug. 18, 2023), (“Maintaining good order and discipline is paramount for mission accomplishment.”). 7. Created by an executive order (EO) of the president of the United States, the MCM sets out the Rules for Courts-Martial, Military Rules of Evidence, Non-Judicial Punishment, the Punitive Articles of the Uniform Code of Military Justice (UCMJ) and commentary. The most recent edition is the MCM, 1984 (1998 edition). 8. Article I, Section 8, Clause 14 (“The Congress shall have Power ... [t]o make Rules for the Government and Regulation of the land and naval Forces”); Article II, Section 2 (“The President shall be Commander in Chief of the Army and Navy of the United States.”). 9. R.C.M. 201-204. 10. See Knox, A Statement of the Troops in the Service of the United States (1789), in 16 American State Papers, Class V – 1 Mil. Aff. 6 (W. Lowrie and M. Clarke eds. 1832), as quoted in “Military Justice and Article III,” 103 Harv. L. Rev. 1909 (1990). 11. The Marine Corps became part of the Navy by virtue of the Act of June 30, 1834. Thus, the Marine Corps was governed by the Articles for the Government of the Navy (also referred to as “Rocks and Shoals”) until the enactment of the UCMJ. The Navy JAG Corps was established in 1967. The Coast Guard, established in 1790 as the “Revenue Cutter Service” within the Department of the Treasury, later under Department of Transportation, and currently the Department of Homeland Security and is the smallest of the Armed Forces, was governed by a system modeled after the Navy. 12. 10 U.S.C. §§801-946. 13. Each branch of service has its own appellate court. For example, an Army court-martial would first be appealed to the Army Court of Criminal Appeals (ACCA), which consists of three Army judges (senior active-duty judge advocates); an Air Force court-martial to the Air Force Court of Appeals; and for both the Navy and Marine Corps, to the Navy-Marine Corps Court of Appeals. 14. A subsequent appeal from one of the service’s appeal courts may be made to the Court of Appeals for the Armed Forces (CAAF), which is made up of five civilian judges who serve 15-year terms with no more than three judges from any political party and selected by the president of the United States and the Supreme Court. Prior to October 1994, this court was known as the United States Court of Military Appeals (CMA or COMA). 15. See, e.g., Army Regulation (AR) 27-10, Military Justice, provides the policies and procedures for the Army; likewise, Dep’t of Air Force, Reg. No. 111-1, Military Justice, Military Justice Guide; Dep’t of Navy, Manual of the Judge Advocate General (JAGMAN); Dep’t of Transportation, Coast Guard, Military Justice Manual, COMDTINST M5810.1A; as well as each military installation may also have a “local regulation” with supplemental guidance. 16. The Army’s Judge Advocate General’s School and Learning Center in Charlottesville, Virginia, publishes The Army Lawyer, as well as The Military Law Review; the Naval Justice School publishes the Naval Law Review and the Air Force has the Air Force Law Review. The Journal of Military and Veterans Law is published by the Judge Advocates Association and is available online at www.jaa.org. 17. Military court decisions are published in the Military Justice Reporter (cited as “MJ”) and are available through online research services such as Lexis and Westlaw. 18. Weiss v. United States, 510 U.S. 163, 194 (1994)(“a system of military justice that is notably more sensitive to due process concerns than the one prevailing through most of our country’s history”) (concurrence, J. Ginsburg). 19. U.S. Const. amend. VI. 20. UCMJ, Article 27; 10 U.S.C. 827. 21. R.C.M. 503(c); R.C.M. 506; Mil. R. Evid. 305(d)(2). 22. The Army’s “public defenders” fall under Trial Defense Service, the Air Force’s defenders are referred to as “Area Defense Counsel,” and
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